Paulo Barrozo 206 society. God speech is law because God speaks only law. His rational creation shares this attribute. In the natural association of individuals into societies, argues Aquinas, humanity exists as a ruled species; ruled, however, by itself, as co-author with God of the law under which it lives. Now, although natural law binds in conscience, conscience is imperfect. Thus, though universally valid, the efficacy of natural law makes room – as all significant natural law doctrines before and after Aquinas do – for anomie. The imperfection of human conscience enters in two ways. First, as with any higher level normative system, the generality and universality of the precepts of natural law require both (meaning) determination and (application) particularization, what much later generations lumped under the idea of law’s relative indeterminacy. As meaning specification and particular application are operations of fallible human reason, the second cause for potential anomie lies in the interference of passions upon reason, a reminder of humankind’s inescapable animal nature, a point that Kant would later pick up on. Now enters human law (positive law) (AQUINAS, 1972, Q. 91, Art. 3) as a remedy for the imperfections of human reason’s understanding of and compliance with natural law. As it concerns this Article, positive law is how history enters the kaleidoscopic, gapless normative system of the cosmos. Yet, human law is derivative of natural law as a logical “conclusion from premises” or as a “determination of certain generalities.” (AQUINAS, 1972, Q. 91, Art. 2) This is what later generations would name formalism. Rationally derivative, positive law is a bounded exercise of practical reason. Accordingly, reason remains irreducibly imbricated in the ontology of law. Positive law is thus a human artifact in the service of natural law cognition, voluntary compliance, and enforcement. However, in light of the same vulnerabilities natural law suffers from human imperfections, so does positive law. Indeed, and by definition, positive law is fallible rationality applied to mundane affairs. Consequently, it can only aim at a form of perfectibility open to “its own particular genus.” (AQUINAS, 1972, Q. 91, Art. 3). Moreover, in Aquinas’ system positive law cannot and should not cover the entire catalogue of human vices, but only those carrying grave social consequences. (AQUINAS, 1972, Q. 91, Art. 2) The vices to be repressed by positive law are those affecting the common
RkJQdWJsaXNoZXIy MjEzNzYz